Dr Paul Copland v Curtin University of Technology T/A Curtin University

[2014] FWC 1982

[2014] FWC 1982

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Dr Paul Copland
v
Curtin University of Technology T/A Curtin University
(U2013/3465)

COMMISSIONER CLOGHAN PERTH, 8 MAY 2014

Unfair dismissal.

[1] On 22 October 2013, Dr Paul Copland (Dr Copland or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Curtin University of Technology T/A Curtin University (University or Employer).

[2] The application was made pursuant to s.394 of the Fair work Act 2009 (FW Act).

[3] The application was unable to be resolved at conciliation and referred to me for arbitration on 28 November 2013.

[4] On 10 December 2013, I issued procedural directions for a hearing on 24 March 2014.

[5] At the hearing on 24 March 2014, the Applicant represented himself and gave evidence on his own behalf.

[6] Curtin University was represented by Mr D Heldsinger of counsel. Evidence was given on behalf of Curtin University by:

● Mr C Thorn: Director, Office of Research and Development (ORD) Curtin University; and

● Mr G Valenti: Manager, Finance and Resources, ORD.

[7] Shortly after the commencement of the hearing, the parties adjourned and agreed that the most appropriate course of action was for the Commission to consider the following matters:

● the date on which Dr Copland’s employment ceased;
● Dr Copland submits that his employment ceased on 11 October 2013;
● the University submits that Dr Copland’s employment ended on 18 September 2013;
● should the Commission determine that Dr Copland’s employment ended on 18 September 2013, the University submits that he has not made his application within 21 days after the dismissal took effect. Consequently, it is necessary for the Commission to be satisfied that there are exceptional circumstances to allow the application to be filed on 22 October 2013;
● should the Commission determine that Dr Copland’s employment ended on 11 October 2013, the application was filed within 21 days of the dismissal taking effect. Consequently, it would be necessary to proceed to the issue of whether Dr Copland resigned or was dismissed in accordance with the meaning of dismissal in the FW Act.

[8] Put shortly, for the purposes of this decision and reasons for decision, the questions to be determined by the Commission are as follows:

● When did Dr Copland’s employment end - was it 18 September or 11 October 2013?

● If Dr Copland’s employment ended on 18 September 2013, are there exceptional circumstances to allow him to lodge his application on 22 October 2013 or 13 days beyond the statutory timeline of 21 days after the dismissal took effect?

[9] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

[10] I now turn to the relevant legislative provisions which relate to Dr Copland’s application.

RELEVANT LEGISLATIVE FRAMEWORK

[11] Section 366 of the FW Act provide:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

RELEVANT BACKGROUND

[12] On or about 7 January 2013, Dr Copland was employed by Curtin University as a level 7.2 Manager, Research Ethics Office (REO) which is within the ORD.

[13] Mr Thorn is the Director, ORD and Dr Copland reported to him.

[14] On 11 September 2013, Mr Thorn met with Dr Copland and advised him of his decision to re-allocate 0.6 Full Time Equivalent (FTE) in the REO to support a new Director appointed to the Minerals Research Initiative. The Director required temporary support until her ongoing personal assistant role was filled.

WHEN DID DR COPLAND’S EMPLOYMENT END?

[15] On 13 September 2013, Dr Copland sent the following correspondence to Mr Thorn. Given its shortness, the correspondence is reproduced in its entirety:

“Dear Mr Thorn

I wish to formally notify you that I am resigning from my position as Manager, Research Ethics with Curtin University of Technology. My last day of employment will be Friday the 11th of October 2013 as per my obligation under the terms of my employment contract.

The failure of Curtin University to institute appropriate measures to allow me to continue to carry out my duties as Manager, Research Ethics during the CCC [Corruption and Crime Commission] investigation of [deleted by FW Commission] has made my position untenable.

Further to this the recent notification without any form of consultation, that my administrative support is to be sharply reduced forces me to conclude that I no longer have the necessary support from Curtin University to perform my role as Manager Research Ethics and I must therefore resign.”

[16] Dr Copland’s resignation is clear and unequivocal. There can be no misunderstanding that Dr Copland was advising his Director, Mr Thorn, that he was giving him formal notice of resignation in accordance with the terms of his employment contract. Dr Copland set out that his last day of employment would be 11 October 2013.

[17] Mr Thorn accepted Dr Copland’s resignation on the same day he received it - 13 September 2013 1.

[18] On the morning of 16 September 2013, Mr Thorn forwarded to the Vice President, Corporate Relations and Development Dr Copland’s resignation and alerting her to the reference to a CCC complaint, in which he and others, were implicated 2.

[19] On the afternoon of 16 September 2013, Mr Thorn and Mr Valenti met with Dr Copland. The relevant parts of the meeting related to the work consequences of Dr Copland’s resignation. Mr Thorn expressed the view that he was unaware of the CCC complaint. Dr Copland referred to the initiating complaint and his dissatisfaction of how it had been dealt with by the University.

[20] On 16 and 17 September 2013, Mr Thorn, either directly or through Mr Valenti, sought advice from the University’s Human Resource department as to whether Dr Copland’s employment could cease immediately. Mr Thorn was advised that Dr Copland’s employment could cease immediately but he would have to be paid his entitlements to 11 October 2013 3.

[21] On 18 September 2013, Mr Thorn met with Dr Copland in the presence of Mr Valenti. Mr Thorn advised Dr Copland that the University considered, in the best interests of both parties, that the employment relationship end immediately. Mr Thorn left the meeting and Mr Valenti shortly afterwards completed with Dr Copland, the University’s “Staff Exiting Checklist” (Checklist) 4.

[22] Mr Valenti at 6:59 pm on 18 September 2013 sent to Mr Thorn a summary of the meeting held earlier that afternoon with Dr Copland. The relevant parts of Mr Valenti’s notes are as follows:

“...he [Dr Copland] would finish up today and he would be paid to the 11th Oct 2013 as per his resignation. Paul [Dr Copland] indicated that he was fine...at approximately 3.40 pm I called Paul into my office to complete the Staff Exit Checklist...Paul signed the Staff Exit Checklist. I then got you [Mr Thorn] to sign it...At the same time I collected his key and his Staff ID card...He advised me that he had a gymnasium locker that contained some personal belongings, however to open the locker he believed he needed his staff ID card...he would ask the gym staff to assist...Paul left the office at approximately 3:55 pm.” 5

[23] Mr Valenti concedes that he put on the Checklist next to “Cease Date”, the words “11th October 2011” which should have read “11th October 2013”. Further, Mr Valenti wrote directly above “Cease Date” the following, “last day in the office 18 Sept 2013” 6.

[24] Mr Valenti, in oral evidence, clarified some of the consequences of the components contained in the Checklist. Essentially, by handing over the various cards, Dr Copland was unable to access University buildings which were limited to card holders. Secondly, Dr Copland was precluded from accessing the University’s computer system 7. Succinctly, Mr Valenti gave evidence:

“...What effect does that have in terms of his - on his employment?---That would render him not being able to do his job. So his employment, you know, ceased at that date because he did not have access to buildings or access to computers, or any of the resources required to actually do his job.” 8

[25] Dr Copland’s contract of employment provides under the heading “Ceasing Employment” the following:

“Upon completion or termination of your contract of employment, you will be required to complete the Staff Exit Checklist.”

[26] Having received Dr Copland’s resignation with the requisite four weeks’ notice, the University determined that the notice of employment should be departed from and the employment relationship ended immediately. In not requiring Dr Copland to work out his notice period, the University compensated him in such a way that the would be no worse off than if he had worked his notice to 11 October 2013.

[27] Having adopted this course of action, on 20 September 2013, the University paid Dr Copland to 11 October 2013 and all his accrued entitlements.

[28] The course of action adopted by the University is common and unremarkable. For good reasons, many employers come to the view that it is preferable to make a payment in lieu of the notice period rather than require, or have employees, work out their notice period.

[29] Dr Copland submits that he did not agree either in writing or verbally to a notice period of less than four weeks 9. Dr Copland misconceives the circumstances. It is not a matter of the parties agreeing to a lesser period of notice but simply the University bringing the employment relationship to an end earlier but in such a way that the employee is compensated for the outstanding period of notice. In this case, Dr Copland was compensated to the extent of the remaining period of notice - that is, up to 11 October 2013.

[30] Notwithstanding Dr Copland’s understanding of the circumstances, I have the evidence of Mr Valenti who, three hours after the discussion between the Applicant, Mr Thorn and himself, notes that Dr Copland was “fine” with the arrangement of his employment coming to an end on 18 September 2013 and being paid up to 11 October 2013.

[31] Mr Heldsinger referred me to the comments by Deputy President Sams in Samantha Micallef v Garfield Child Care Pty Ltd t/as Garfield Child Care[2013] FWC 5447 which I adopt without reticence:

“[40] ... it cannot seriously be put that a payment made by an employer, in lieu of notice, still means the employment remains on foot until the notice period expires. Such a proposition is nonsense and cannot withstand scrutiny. I refer to what Wilcox CJ said in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at page 355:

‘It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.’

Of course, the legal position is entirely different if the employee works out the notice and is effectively terminated at the end of the notice period.

[41] In addition, I would wish to emphasise that the common practice of employers paying employees in lieu of notice is expressly recognised by the statute. s 117(2) deals with the circumstances which must apply if the employer is seeking to terminate an employee’s employment. It reads as follows:

‘117 Requirement for notice of termination or payment in lieu

...

Amount of notice or payment in lieu of notice

(2) The employer must not terminate the employee’s employment unless:

(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.’

Clearly, then, the legislature intended that an employer may terminate an employee’s employment if the relevant notice is either worked or paid out. One cannot construe these provisions as meaning the termination is invalid, where the employer has met its obligations under s 117(2) of the Act. The Commission finds that the date the applicant’s dismissal took effect was 26 April 2013. In the result, her s 365 application is three days ‘out of time’, according to the provisions of s 366(1) of the Act.”

[32] On the material provided to the Commission, I must find that Dr Copland’s employment ceased on 18 September 2013. Accordingly, the application was lodged 13 days beyond the statutory timeline of 21 days after the alleged constructive dismissal took effect. As a consequence of this finding, it is necessary to determine whether there are exceptional circumstances to allow the application to be filed on 22 October 2013.

ARE THERE EXCEPTIONAL CIRCUMSTANCES TO ALLOW DR COPLAND’S APPLICATION TO BE MADE ON 22 OCTOBER 2013?

[33] The Commission can allow a further period for Dr Copland to file his application on 22 October 2013 if there are exceptional circumstances.

[34] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[35] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[36] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 21 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.

[37] The burden lies with Dr Copland to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application

[38] Dr Copland gives evidence that the reason for the delay is that, “I was simply unaware that I had been dismissed on 18 September” 10. Dr Copland concedes that, “although I had reason to believe that my employment status had changed I did not believe that employment change was relevant to my application to the Fair Work Commission”11.

[39] Dr Copland clearly acknowledges that his employment status has changed. The reasons why the employment status had changed included his discussion with Mr Thorn, the completion of the Checklist, withdraw of access to various University buildings, the handing over of his staff ID card, clearing out of his gym locker, inability to access the University’s computer system, and finally, on 20 September 2013, the payment of the remainder of the notice period and his accrued entitlements.

[40] These actions are not compatible with Dr Copland’s assertion that, “I took this to mean some version of gardening leave” 12. The expression “gardening leave” is subject to various meanings but is generally associated with a situation where the employee is not required to attend work because of a workplace investigation. The incident which has led to the investigation is either serious enough to warrant the employee not attending work or the investigation would benefit from the absence of that employee from the workplace. In other situations, it is where circumstances lead to the view by the employer that it is preferable that the employee not be at work, but for whatever reason, remain in an employment relationship.

[41] Where cessation of employment is involved, “gardening leave” is usually attended by specific instructions from the employer such as: the employee not being required to perform any duties associated with the position; attendance at the workplace; contact with clients, customers, other employees, or to act as a representative of the employer unless directed to do so. While the Applicant’s evidence is that he “took this [the circumstances] to mean some version of gardening leave”, the evidence cannot lead to such a conclusion.

[42] As I mentioned in paragraph [39], one of the many factors which are demonstrative of Dr Copland’s employment ceasing is that he was paid out the remainder of his notice period and accrued entitlements on 20 September 2013. As an indicator of Dr Copland’s employment ending, it must rank highly. However, Dr Copland contends “I never actually checked my bank account. I do have online banking, I believe, but I don’t recall the password and I didn’t receive a statement that had my final payment from Curtin...so it gave me no warning that my employment ceased.” 13 If that was the case, it is unfortunate for Dr Copland but he is the author of his own lack of knowledge.

[43] Finally, the Applicant contends that he was unaware of the statutory timeline. If becoming aware of the statutory timeline is an exceptional circumstance for delay in making an application to the Commission, the statutory timeline would become meaningless. Ignorance of the provisions of the FW Act, as set out in similar legislation, Nulty v Blue Star Group Pty Ltd (2011) 2013 IR 1 [14], is not an exceptional circumstance for delay in lodging applications.

Paragraph 394(3)(b) - the date upon which the applicant became aware of the dismissal

[44] The University denies that Dr Copland was dismissed and that he resigned. Notwithstanding this submission, I am satisfied for the reasons set out in paragraphs [15] to [32] that the Applicant was aware that the employment relationship ended on 18 September 2013.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[45] From the documentation provided to the Commission, this application is the only formal action taken by Dr Copland to dispute his alleged constructive dismissal by the University.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[46] I have adopted a neutral position to this criterion.

Paragraph 394(3)(e) - the merits of the application

[47] Whether the Applicant was constructively dismissed can only be determined, in my view, after a hearing where evidence is tested. While I have Dr Copland’s letter of resignation, the parties agreed that, in the first instance, this is not the primary issue for consideration. Consequently, I have adopted a neutral position with regards to this criterion, as to whether time should be extended to file the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[48] It would appear that this criterion is not a relevant consideration. To the extent it is relevant, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[49] In conclusion, for the reasons set out above, I find that Dr Copland’s employment ceased on 18 September 2013. Further, as a consequence of his employment ceasing on 18 September 2013, the application was made beyond the statutory timeline of 21 days after the alleged constructive dismissal took effect. Having considered the criteria in s.366(2) of the FW Act, I am not satisfied that exceptional circumstances existed which led to a delay in filing this application. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

Appearances:

P Copland, the Applicant on his own behalf.

D Heldsinger of counsel with A Corrigan for the Respondent.

Hearing details:

2014:

Perth,

24 March.

 1   Exhibit R6

 2   Exhibit R6

 3   Exhibit R6

 4   Exhibit R6

 5   Exhibit R7

 6   Exhibit R7 LV4

 7   Transcript PN233-244

 8   Transcript PN247

 9   Exhibit A2

 10   Transcript PN395

 11   Transcript PN395

 12   Transcript PN75

 13   Transcript PN75

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